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Article Excerpt
Introduction
Public attitudes toward sentencing in Canada have been the subject of systematic research for well over a generation now--beginning with the Legal Research Institute Survey conducted in 1978 (reported in Moore 1985). One reason for this interest on the part of researchers is that sentencing has always placed high on the public criminal justice agenda. This is particularly true at the present. Several specific issues, including mandatory sentencing, conditional sentencing, and parole, have attracted newspaper headlines and generated public and political discussion in recent years. The result has been an increase in calls for punitive sentencing reforms, including the expansion of the use and severity of mandatory sentencing, the elimination of conditional sentences for a range of offences, and the abolition of statutory release. In 2006 the federal government introduced legislation to expand the number and severity of mandatory sentences of imprisonment (see below). This article examines the state of public attitudes regarding three of the most important contemporary sentencing issues: mandatory sentencing; sentencing objectives; and sentence severity.
Mandatory sentencing
Most Western nations have enacted mandatory sentencing legislation in recent years. These laws usually focus on serious violent and repeat offenders (see Roberts 2005 for a review of representative statutes). The mandatory sentences of imprisonment in some jurisdictions are particularly severe. For example, in South Africa, the Criminal Law Amendment Act 105 of 1997 created long mandatory sentences of imprisonment for a range of offences, particularly when the offender has previous convictions. An offender convicted of robbery for the third or subsequent occasion must be sentenced to at least 25 years in prison. Mandatory sentencing laws have usually been introduced to address escalating crime rates (or perceptions of rising crime rates) and to respond to public pressure to make the sentencing process harsher (Roberts, Stalans, Indermaur, and Hough 2003).
For many politicians, mandatory sentences represent a convenient, expeditious, and popular response to a specific crime problem (see discussion in Doob and Cesaroni 2001). Since polls repeatedly show that the public believes sentencing to be excessively lenient, any reform that promises greater severity is perceived to be consistent with public opinion. For example, an Australian prime minister stated several years ago that he was "not surprised at the overwhelming support that Australians have shown for the introduction of mandatory sentencing laws" (Burke 2000, 1). He was referring, however, not to a scientific survey using a representative sample but simply to a tabloid newspaper initiative in which interested readers had been asked to express their opinions on the issue. Politicians' interpretation of public opinion in this area may be erroneous; public support for mandatory sentencing may be not as strong as many suppose. Contrary evidence can be found in a poll conducted in the United States in 1999, which found that more than half of the sample stated that they would be more likely to vote for a politician who advocated increasing judicial discretion--the antithesis to mandatory sentencing (Zogby International 1999).
The fatal shooting in Toronto on Boxing Day 2005 of teenager Jane Creba shocked Canadians and resulted in calls for more and more severe mandatory sentences of imprisonment for firearms offences. The fact that this crime took place during the middle of a federal election gave additional impetus to the movement to amend the existing mandatory sentence provisions of the Criminal Code. In response, the Conservative Party of Canada announced that, if elected, it would create new firearms offences that would carry five-year minimum terms of imprisonment (Conservative Party of Canada 2005). In addition to legislating new mandatory sentences, the party also announced that it would significantly increase the severity of the existing mandatory penalties prescribed for gun-related offences. At the time when these calls for reform were made, an offender convicted of one or more of 10 serious offences received a sentence of least four years in prison if the crime was committed with a firearm. Even the New Democrats--for the first time in their history--advocated the creation of additional mandatory minimum sentences. In their electoral platform they proposed the creation of a four-year minimum sentence for illegal possession and sale of restricted firearms--such as handguns and automatics--as well as a four-year minimum sentence for importing illegal firearms (NDP Canada 2005). The Liberal party also included stiffer mandatory minimum sentences for firearms in their platform (Liberal Party of Canada 2006). Once elected, the new federal government moved swiftly to introduce mandatory sentencing legislation.
Bill C-10 was introduced on 4 May 2006 for the purpose of amending the Criminal Code with respect to sentencing for firearms offences. The legislation calls for a number of amendments, including increasing the four-year minimum for certain firearms offences to five years for first-time offenders. The legislation also provides for escalating minimum penalties for repeat offenders. For example, for a second conviction of a specified firearms offence (e.g., robbery with firearm), the minimum sentence would be seven years' imprisonment; if there is a third conviction, the minimum sentence would rise to 10 years. There are also several firearms offences that currently carry a one-year minimum sentence, which, if the legislation is passed, will increase to three years for a first conviction and five years for any subsequent convictions. The legislation also aims to create two new offences: breaking and entering with intent to steal a firearm and robbery with intent to steal a firearm. A conviction for either of these two offences would result in a three-year minimum sentence for a first conviction and a five-year minimum sentence for any subsequent convictions. This bill received second reading on 13 June 2006 and was referred to the Committee on Justice and Human Rights.
Judicial discretion and mandatory sentencing
Mandating a long prison sentence for a specific crime, regardless of the individual circumstances of the offence or the offender, has the potential to create injustices. There will always be cases that are less serious than the typical crime. For this reason, mandatory sentencing legislation in most countries permits a limited degree of judicial discretion (Roberts 2005; Burnett, Crutcher, and Burton 2006). Courts are empowered to impose a less severe sentence of imprisonment--or even a non-custodial disposition--in the event that exceptional circumstances exist to justify a lesser sentence. In England and Wales, s. 111 of the Powers of the Criminal Court (Sentencing Act) 2000 created a "three strikes" mandatory sentencing provision for burglary. When a court sentences an adult offender convicted of a domestic burglary committed after 30 November 1999, if the offender has previously been convicted of two other domestic burglaries, "The court shall impose an appropriate custodial sentence for a term of at least three years except where the court is of the opinion that there are particular circumstances which
(a) relate to any of the offences or to the offender; and
(b) would make it unjust to do so in all the circumstances."
Even in South Africa, the nation with some of the most severe mandatory sentences outside the United States and arguably the worst crime problem, judges are able to exercise some judicial discretion to circumvent the mandatory minimum sentence. The relevant provision of the 1997 Criminal Law Amendment Act states that if the court, when required to impose a mandatory sentence,
is satisfied that substantial and compelling circumstances exist which justify the imposition of a lesser sentence than the sentence prescribed in those subsections, it shall enter those circumstances on the record of the proceedings and may thereupon impose such lesser sentence. (s. 51.(3)(a))
The experience in South Africa suggests that exceptional circumstances are often invoked by courts to circumvent the mandatory sentence.
Mandatory minima in Canada
One of the features of Canadian mandatory minima that sets them apart from mandatory sentences elsewhere is the absence of any provision for judicial discretion. It is significant that none of the proposals for additional mandatory sentences made during the election--nor the government's amendments to existing mandatories--includes any "judicial discretion" clause. With respect to the firearms mandatory minima introduced in 1995, courts must impose a term of at least four years if the offender has been convicted of one of the 10 enumerated offences using a firearm. (The offences are criminal negligence causing death [s. 220]; manslaughter [s. 236]; attempted murder [s. 239]; discharging a firearm with intent [s. 244]; sexual assault with a weapon [s. 272]; aggravated sexual assault [s. 273]; kidnapping [s. 279.1] hostage-taking [s. 279.1]; robbery [s. 344]; and extortion [s. 346].) The minimum sentence must be imposed regardless of the individual circumstances of the case or whether the interests of justice would be best achieved with a lesser sentence.
Permitting courts some flexibility with mandatory minimum sentencing regimes is important, particularly if the mandatory sentence is very long. It is inevitable that circumstances will arise that sometimes justify the imposition of a lesser sentence. "Judicial discretion" clauses of this nature are often overlooked; when crafting and approving mandatory-sentencing statutes, legislators usually have in mind the most serious cases of any particular offence. When the mandatory sentence is applied, however, judges are sometimes confronted with crimes committed in exceptional circumstances that are far less serious than those envisaged by the legislature and do not correspond to the profile targeted by the drafters of the legislation. Some politicians appear to respond to a category of offending--serious gun crime--and have no experience with the wide diversity of offences and offenders that appear for sentencing in criminal courts across the country. This is why it makes little sense for legislators to intervene with such inflexible and blunt sentencing tools as a statutory mandatory minimum at this level in the sentencing process. (3)
A good example of this phenomenon can be found in the history of sentencing in Canada. It will be recalled that the Supreme Court of Canada struck down the seven-year minimum sentence of...
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